filed: February 11, 1992; As Amended February 24, 1992.
On Appeal From the United States District Court. For the District of New Jersey. (D.C. Civil Action No. 90-1953)
Before: Stapleton, Scirica, and Aldisert, Circuit Judges
STAPLETON, Circuit Judge :
In this appeal, we focus on Exemptions 7(C) and 7(D) to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (b)(7)(C)-(D). These exemptions are at the center of a dispute between plaintiff-appellee Vincent Landano and defendants-appellants the Federal Bureau of Investigation and Department of Justice (collectively the "FBI") over Landano's request under the FOIA for documents relating to the 1976 murder of a police officer. Landano was convicted for that murder in a New Jersey state court. The district court granted summary judgment to Landano and ordered the FBI to release information that it had withheld as exempt. The FBI has appealed. We will affirm in part, reverse in part, and remand.
On August 13, 1976, two gunmen robbed the Hi-Way Check Cashing Service in Kearney, New Jersey. During the course of the robbery, one of the two men shot and killed a police officer, John Snow. The FBI was involved, as were New Jersey state law enforcement officials, in the investigation of the murder. A state grand jury indicted Landano for felony murder, and he was convicted. Landano has always maintained that he did not participate in the robbery and that a man named Victor Forni was the killer of Officer Snow.
Landano attacked his conviction in a federal habeas corpus proceeding asserting that the state prosecutors violated the rule of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 , 83 S. Ct. 1194 (1963), by suppressing exculpatory evidence. The United States District Court for the District of New Jersey found merit in this argument and ordered that Landano be retried or released. This court reversed because Landano had not exhausted his state remedies. Landano v. Rafferty, 897 F.2d 661 (3d Cir.), cert. denied , 111 S. Ct. (1990). Landano is apparently pursuing that claim at present in the New Jersey state court system.
Landano has simultaneously sought to obtain FBI files under the FOIA in the hope that they will contain exculpatory evidence or lead to the discovery of such evidence. Landano first sent a letter to the FBI's Newark field office requesting all information pertaining to the murder of Officer Snow. In response, the FBI provided 324 pages of a 726-page file, some of which were redacted. Thereafter, Landano sent the FBI a request for all information on Victor Forni. The FBI released only a portion of that file as well. As to the information in the Snow and the Forni files at issue here, the FBI contended that the release of some of the information would violate the privacy rights of individuals named in those files and that the release of other information would violate confidentiality expressly or impliedly promised by the FBI to persons from whom the FBI received information in the course of its investigation.
After exhausting his administrative appeals, Landano initiated this proceeding in the district court requesting that the court order the FBI to produce the entire contents of the requested files. The FBI submitted an affidavit of FBI Special Agent Regina Superneau detailing its reasons for withholding information under Exemptions 7(C) and 7(D), as well as under other exemptions not at issue here. The court granted summary judgment to Landano and ordered the FBI to release essentially all of the withheld material other than information that would disclose the identity of, or communications from, informants or undercover agents.
The FOIA, which is a part of the Administrative Procedure Act, requires that any federal agency promptly make available any records requested of it by any person so long as the request "reasonably describes such records." 5 U.S.C. § 552(a)(3). If an agency improperly withholds such documents, a federal district court may order production. Congress has exempted nine important categories of information from this blanket requirement, however. In this case, we are concerned with Exemption 7(C) and Exemption 7(D).
We first consider of Exemption 7(C). Exemption 7(C) exempts from disclosure "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information . . . could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). If the agency invokes Exemption 7(C), it has the burden "to sustain its action." Id. § 552(a)(4)(B).
An agency's invocation of Exemption 7(C) requires us to identify the privacy interests that would be affected by release of the requested information as well as the public interests that would be served by disclosure. After identifying the competing interests we are then called upon to balance those interests to determine if disclosure is appropriate, i.e., whether disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." § 552(b)(7)(C) (emphasis supplied). See United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 103 L. Ed. 2d 774 , 109 S. Ct. 1468 (1989).
Landano does not dispute the right of the FBI to withhold the names of FBI undercover agents or FBI informants. We are concerned here with: (1) the names of other FBI employees that appear in the requested documents; (2) the names of the persons interviewed during the investigation; (3) the names of third parties mentioned by those interviewed; and (4) the identities of state and local law enforcement personnel who participated in the investigation. Thus, our Exemption 7(C) analysis is concerned solely with the failure to disclose the identity of individuals who were involved in the investigation or in the events with which the investigation was concerned.
The district court held that the FBI had not made an adequate showing that disclosure of the information withheld under Exemption 7(C) would implicate anyone's privacy interest. In its words, the "defendant offers nothing to convince the court that the dangers involved in releasing such information exist in this particular case, particularly in view of the approximately 14 years which have elapsed since the underlying investigation." Landano v. United States Dep't of Justice, 751 F. Supp. 502, 508 (D.N.J. 1990). We do not agree.
Numerous courts of appeals have recognized that individuals involved in a criminal investigation -- including suspects, witnesses, interviewees, and investigators -- possess privacy interests, cognizable under Exemption 7(C), in not having their names revealed in connection with disclosure of the fact and subject matter of the investigation. See, e.g., Safecard Services, Inc. v. SEC, 288 App. D.C. 324, 926 F.2d 1197, 1205 (D.C. Cir. 1991) ("suspects, witnesses and investigators" have privacy interests implicated by release of their names in connection with a criminal investigation); KTVY-TV v. United States, 919 F.2d 1465, 1469 (10th Cir. 1990) (witnesses and persons named by them have privacy interests). Suspects of the investigation have the most obvious privacy interest in not having their identities so revealed. Baez v. United States Dep't of Justice, 208 App. D.C. 199, 647 F.2d 1328, 1338 (D.C. Cir. 1980). However, disclosure of the names of interviewees and witnesses may result in embarrassment and harassment to them as well. Criminal investigations turn up a myriad of details about the personal lives of witnesses and interviewees and for some, disclosure of the fact of cooperation with the investigation may itself result in reprisals or strained personal relationships. Moreover, as this case demonstrates, many people may have reason to seek out and question those who have supplied information in the course of a criminal investigation. See, e.g., Halloran v. Veterans Admin., 874 F.2d 315, 321 (5th Cir. 1989), ("many of the nonsuspects who are identified or referred to in the transcripts have discernible privacy interests in not having their thoughts, comments, and views regarding their work, their job performance, and their co-workers, clients, and friends released to the public. Moreover, merely being associated with a criminal investigation may lead to further embarrassment and difficulties."); Cleary v. FBI, 811 F.2d 421, 424 (8th Cir. 1987) (recognizing privacy interests in avoiding "unnecessary questioning concerning the investigation [and] subpoenas issued by private litigants in civil suits incidentally related to the investigation," although conceding that these privacy interests may be overborne by greater public interests).
Moreover, this court has held that even the law enforcement personnel involved in a criminal investigation have a privacy interest, cognizable under Exemption 7(C), in not having their identities disclosed. In Patterson by Patterson v. FBI, 893 F.2d 595, 601 (3d Cir.), cert. denied, 112 L. Ed. 2d 24, 111 S. Ct. 48 (1990), we concluded that the FBI acted properly in withholding under Exemption 7(C) the names of the FBI personnel who had conducted an investigation because investigators have a privacy interest in not being identified with particular investigations and because in the context of that case "only a negligible benefit would inure to the public by releasing" the names of the law enforcement personnel involved. Other courts of appeals have recognized the same privacy interest. See, e.g., Ingle v. United States Dep't of Justice, 698 F.2d 259, 269 (6th Cir. 1983) ("It is, of course, well established that FBI agents themselves have the right to be protected against public disclosure of their participation in law enforcement investigations pursuant to exemption (b)(7)(C)."); Nix v. United States, 572 F.2d 998, 1006 (4th Cir. 1978) ("One who serves his state or nation as a career public servant is not thereby stripped of every vestige of personal privacy, even with respect to the discharge of his official duties. Public identification of any of these individuals could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives.").
Our decision in Lame v. United States Department of Justice, 654 F.2d 917 (3d Cir. 1981) is not at odds with these authorities. There, we stated that there is no per se rule that "the mere connection of an individual with a criminal investigation constitutes an unwarranted invasion of his privacy." Id. at 923 n.6 (emphasis added). We read this observation not to imply that such a person has no privacy interest in such a case, but rather that such a privacy interest does not always trump the public interest in disclosure. The inclusion in this observation of the word "unwarranted," which is the textual basis for the balancing of private and public interests under Exemption 7(C), supports this reading of Lame.
While the privacy interests of those involved in a criminal investigation may become diluted by the passage of time, several courts have recognized that the potential for embarrassment and harassment may endure for many years. E.g., Keys v. United States Dep't of Justice, 265 App. D.C. 189, 830 F.2d 337, 348 (D.C. Cir. 1987) (The passage of forty years "does not so dilute the privacy interest as to tip the balance the other way."); Diamond v. FBI, 707 F.2d 75, 77 (2d Cir. 1983) ("For persons who were subjects of an FBI investigation or who cooperated with the agency [during the McCarthy era] the potential for embarrassment, harassment, or other repercussions remains acute"), cert. denied, 465 U.S. 1004, 79 L. Ed. 2d 228 , 104 S. Ct. 995 (1984).*fn1 Since interest in the Snow homicide has not been extinguished by time, it seems apparent to us that some potential for embarrassment and harassment remains. Indeed, Landano candidly acknowledges that he wants the names disclosed so that he may track down and question the participants in the Snow investigation. While his desire to do so is understandable and while their interest in not having the matter resurrected in their lives is not necessarily entitled to prevail, Landano's intentions do bear witness to the fact that privacy interests remain despite the passage of years.
We hold in accord with Patterson that individuals who are associated with a criminal investigation have a privacy interest under Exemption 7(C) of the FOIA such that the government may be justified in refusing to disclose their names. While that interest may be stronger for some categories of these persons than for others, we need not resolve that question until we are forced to balance ...